(PC) Moss v. Bowermen ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AMY MOSS, No. 1:18-cv-1191 JLT BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, DISMISSING THE ACTION 14 BOWERMEN, et al., WITHOUT PREJUDICE, AND DIRECTING THE CLERK OF COURT TO CLOSE THE 15 Defendants. CASE (Docs. 33, 43) 16 17 Amy Moss seeks to hold the defendants liable for violations of her civil rights action 18 pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s claims against Defendants 19 Mount and Gaona1 for excessive force in violation of the Eighth Amendment. (Doc. 16 at 3; see 20 also Doc. 12.) Defendants moved for summary judgment, asserting “Plaintiff failed to exhaust 21 available administrative remedies as required under the Prison Litigation Reform Act.” (Doc. 33.) 22 The magistrate judge noted Plaintiff identified three inmate appeals, which the magistrate 23 judge found did not exhaust the claims in issue. (Doc. 43 at 10-11.) In addition, the magistrate 24 judge rejected Plaintiff’s argument that her ability to use the grievance process was thwarted, 25 finding no evidentiary support for her statement that she was denied forms. (Id. at 12.) The 26 magistrate judge found it was “undisputed that Plaintiff knew she had to appeal the claim of 27 excessive force but did not do so in a timely manner.” (Id. at 13.) Furthermore, the magistrate 28 1 Erroneously sued as “Gayona.” 1 judge found Plaintiff’s transfers between facilities did not excuse timely exhaustion, because 2 there was no “evidence showing the administrative remedy was due to her institutional transfers.” 3 (Id. at 13-14.) The magistrate judge observed Plaintiff was not transferred for three months after 4 the underlying incident and had the necessary information to submit an appeal. (Id. at 14.) The 5 magistrate judge concluded Plaintiff “failed to create a dispute of material fact that her transfers 6 made the grievance procedure unavailable to her.” (Id.) Therefore, the magistrate judge 7 recommended Defendants’ motion for summary judgment be granted and the action be dismissed 8 without prejudice. (Id. at 17.) 9 Plaintiff filed objections to the Findings and Recommendations, maintaining that she was 10 “continuously transferred” and “bouncing from institution to institution.” (Doc. 44 at 1.) She 11 maintains that she was not able to exhaust her administrative remedies and filed the lawsuit to 12 avoid the two-year statute of limitations. (Id. at 1-2.) 13 As the magistrate judge observed, Plaintiff did not submit any evidence to support her 14 assertions that the transfers rendered her unavailable to exhaust administrative appeals. Indeed, as 15 the magistrate judge found—and Plaintiff does not dispute—Plaintiff was not transferred for three 16 months after the underlying event. On these facts, the Court is unable to find the subsequent 17 transfers support a conclusion that administrative remedies were unavailable. See, e.g., Lindsey v. 18 Vasquez, 2023 WL 4306176, at *1 (E.D. Cal. June 30, 2023) (transfer to another CDCR 19 institution does not relieve a plaintiff of the obligation to pursue administrative remedies before 20 filing a civil action); see also Martin v. Longardener, 2023 WL 8435824, at *1 (E.D. Cal. Dec. 5, 21 2023) (“A transfer from an institution in which a cause of action arises does not necessarily 22 excuse the requirement that an inmate must exhaust his administrative remedies prior to filing suit 23 in federal court”). Plaintiff fails to show she was unable to exhaust available administrative 24 remedies. 25 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 26 case. Having carefully reviewed the matter, including Plaintiff’s objections, the Court concludes 27 the Findings and Recommendations are supported by the record and proper analysis. Thus, the 28 Court ORDERS: 1 1. The findings and recommendations issued on February 2, 2024 (Doc. 43) are 2 ADOPTED in full. 3 2. Defendants’ motion for summary judgment (Doc. 33) is GRANTED. 4 3. This action is DISMISSED without prejudice for failure to exhaust administrative 5 remedies; and 6 4. The Clerk of Court is directed to close this case. 7 g IT IS SO ORDERED. 9 Dated: _ February 24, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28